Nussbaum v. United States

• Court: Court of Appeals for the Federal Circuit
• Decided: November 17, 2021
• Docket: 20-1170
• Status: Unpublished

Opinion

Case: 20-1170 Document: 59 Page: 1 Filed: 11/17/2021

NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit ______________________

THOMAS NUSSBAUM, Plaintiff-Appellant

v.

UNITED STATES, Defendant-Appellee ______________________

2020-1170 ______________________

Appeal from the United States Court of Federal Claims in No. 1:19-cv-00376-CFL, Senior Judge Charles F. Lettow. ______________________

Decided: November 17, 2021 ______________________

THOMAS NUSSBAUM, Millbrae, CA, pro se.

SONIA MARIE ORFIELD, Commercial Litigation Branch, Civil Division, United States Department of Justice, Wash- ington, DC, for defendant-appellee. Also represented by BRIAN M. BOYNTON, DEBORAH ANN BYNUM, MARTIN F. HOCKEY, JR. ______________________

Before LOURIE, REYNA, and TARANTO, Circuit Judges. Case: 20-1170 Document: 59 Page: 2 Filed: 11/17/2021

PER CURIAM. Appellant Thomas Nussbaum appeals the dismissal of his court action by the U.S. Court of Federal Claims upon finding that Nussbaum’s action is untimely pursuant to 41 U.S.C. § 7104(b)(3). For the reasons explained below, we affirm. BACKGROUND In 2001, the Federal Correctional Institution in Vic- torville, California (“FCI Victorville”) sought repair work on some boilers, and Nussbaum submitted a bid to perform the work. See Nussbaum v. United States, 145 Fed. Cl. 5, 8 (2019) (citing Nussbaum v. United States, No. 19-376C, ECF No. 1 (“Compl.”) Ex. 1 at 2)). According to Nussbaum, he learned that FCI Victorville wanted to award the project to Cal Inc., a company with a preexisting General Services Administration (“GSA”) Schedule Contract. Id. (citing Compl. at 6, Ex. 11 at 2). Nussbaum sent his bid proposal to Cal Inc. Id. (citing Compl. at 17). FCI Victorville issued a purchase order to Cal Inc. under the GSA Schedule Con- tract, using Cal Inc. as a “broker” for the boiler project. Id. (citing Compl. at 6). Nussbaum became a subcontractor to Cal Inc. and supplied materials and performed construc- tion work. Id. During construction, disputes arose. After the project was completed around 2003, Nussbaum sued Cal Inc. in state court, alleging fraud and other claims. Id. (citing Compl. at 7, Ex. 7 at 4). The state court action settled for $80,000. See id. (citing Compl. at 12, 18). As part of the settlement, Cal Inc. agreed to support Nussbaum in seek- ing payment of costs related to change orders from FCI Victorville. Id. (citing Compl. at 18, Ex. 6). In Janu- ary 2010, Nussbaum sent Form SF 30 1 requests to

1 Standard Form 30 (SF 30), titled “Amendment of Solicitation/Modification of Contract,” is used for amending Case: 20-1170 Document: 59 Page: 3 Filed: 11/17/2021

NUSSBAUM v. US 3

U.S. Bureau of Prisons (“BOP”) offices in Dublin, Califor- nia, and Grand Prairie, Texas, claiming payment for the change order costs. Id. (citing Compl. at 12). The contract- ing officer, Ms. Arakaki, never responded to Nussbaum. Id. On March 10, 2010, John Wenkman from the Grand Prairie office issued a denial of Nussbaum’s claim on the grounds that the request should have come from the con- tract holder, Cal Inc., not Nussbaum. Id. (citing Compl. at 7, Ex. 3 at 2). Nine years passed, and in March 2019, Nussbaum sued BOP in the U.S. Court of Federal Claims (“Claims Court”). Id. at 7. Nussbaum asserted four causes of action: (1) fraudulent and intentional misrepresentation; (2) neg- ligent misrepresentation; (3) breach of the implied cove- nant of good faith and fair dealing; and (4) unjust enrichment. Id. (citing Compl. at 15–17). The government moved to dismiss on grounds that the action was barred by the six-year statute of limitations set forth in 28 U.S.C. § 2501. 2 Id. The Claims Court agreed that Nussbaum’s complaint was time-barred but clarified that § 2501 does not apply because Nussbaum’s action is governed by the Contract Disputes Act (“CDA”), 41 U.S.C. §§ 7101–7109. The CDA sets time limitations for bringing an action, in this case six years to submit an administrative claim to a contracting officer, and one year after the con- tracting officer denies a claim to bring suit before the Claims Court. 41 U.S.C. §§ 7103(a)(4)(A), 7104(b)(1). The Claims Court determined that Nussbaum’s lawsuit was untimely under the applicable one-year statute of limita- tions because several years had passed since his

or modifying purchase orders and contracts with the gov- ernment. See FAR 53.243. 2 Generally, every claim brought before the Claims Court must be “filed within six years after such claim first accrues.” 28 U.S.C. § 2501. Case: 20-1170 Document: 59 Page: 4 Filed: 11/17/2021

Form SF 30 administrative requests were denied. Nuss- baum, 145 Fed. Cl. at 12–13. The Claims Court also deter- mined that equitable tolling did not apply. 3 Id. at 13–14. The Claims Court dismissed the action for failure to state a claim. Id. at 14. Nussbaum appeals. We have jurisdic- tion pursuant to 28 U.S.C. § 1295(a)(3). STANDARD OF REVIEW In appeals from the Claims Court, we review legal con- clusions de novo and factual findings for clear error. Ca- sitas Mun. Water Dist. v. United States, 708 F.3d 1340, 1351 (Fed. Cir. 2013) (citing Estate of Hage v. United States, 687 F.3d 1281, 1285 (Fed. Cir. 2012)). Whether the Claims Court properly dismissed an action for failure to state a claim upon which relief may be granted is a ques- tion of law subject to de novo review. Turping v. United States, 913 F.3d 1060, 1064 (Fed. Cir. 2019). In reviewing a dismissal on the pleadings, “we must accept as true all the factual allegations in the complaint” and “must indulge all reasonable inferences in favor of the non-movant.” Sommers Oil Co. v. United States, 241 F.3d 1375, 1378 (Fed. Cir. 2001) (citations omitted).

3 Whether the CDA’s one-year limitations period is subject to equitable tolling remains an open question. But we agree with the Claims Court that equitable tolling was not available to Nussbaum in any circumstance. For equi- table tolling to apply, Nussbaum is required to establish “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.” Menominee Indian Tribe of Wis. v. United States, 136 S. Ct. 750, 755 (2016). The rec- ord does not support that Nussbaum has met those require- ments. See Nussbaum, 145 Fed. Cl. at 14. Case: 20-1170 Document: 59 Page: 5 Filed: 11/17/2021

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DISCUSSION Nussbaum argues that the Claims Court misappre- hended the facts of this case and, as a result, erred in its determination concerning the nature of the purchase order contract between FCI Victorville and Cal Inc. Appellant’s Br. 2. According to Nussbaum, this error led the Claims Court to find his claims time-barred under the CDA. Id. We disagree. The CDA applies to any express or implied contract made by an executive agency for, among other things, the procurement of services or the procurement of construc- tion. 41 U.S.C. § 7102(a). For disputes arising from such contracts, the CDA establishes an administrative appeal process that must be exhausted before filing suit in the Claims Court. See England v. The Swanson Grp., Inc., 353 F.3d 1375, 1379 (Fed. Cir. 2004). A contractor who has a claim against the government must initiate the adminis- trative process by submitting an administrative claim to the contracting officer, 41 U.S.C. § 7103(a)(1), “within 6 years after the accrual of the claim,” 41 U.S.C. § 7103(a)(4)(A). Upon receipt of a contractor’s claim, the contracting of- ficer must, within sixty days of receiving the claim, issue a decision or notify the contractor of the time within which a decision will be issued. 41 U.S.C. § 7103(f)(2). If a con- tracting officer fails to issue a decision within the pre- scribed period, such failure “is deemed to be a decision by the contracting officer denying the claim.” 41 U.S.C. § 7103(f)(5). After a claim is denied, the contractor may appeal to an agency board or file suit before the Claims Court. 41 U.S.C. § 7104(a)–(b). Any such suit to the Claims Court must be brought within one year from receipt of the contracting officer’s denial. 41 U.S.C. § 7104(b)(3). Nussbaum argues that no limitations period applies to his action because he has alleged that the contracting of- ficer and others committed fraud, and that claims involving Case: 20-1170 Document: 59 Page: 6 Filed: 11/17/2021

fraud have no time limitations. Appellant’s Br. 6–7 (quot- ing 41 U.S.C. § 7103(a)(4)(B)). But Nussbaum’s reliance on 41 U.S.C. § 7103(a)(4)(B) is misplaced. That provision ap- plies to causes of action by the Federal Government against contractors that involve fraudulent claims. 41 U.S.C. § 7103(a)(4)(B). Nussbaum’s claims against the govern- ment are not “claim[s] by the Federal Government against a contractor.” See id. The Claims Court is correct that Nussbaum’s action is governed by 41 U.S.C. §§ 7103 and 7104. Under § 7103(a), Nussbaum made a timely filing before the contracting of- ficer. See 41 U.S.C. § 7103(a); Nussbaum, 145 Fed. Cl. at 12–13. He was required under § 7104(b), however, to bring suit before the Claims Court within one year of denial of his claim by the contracting officer, which he failed to do. See 41 U.S.C. § 7104(b). Here, the record shows that Nuss- baum filed suit at the Claims Court approximately nine years after he was denied by the contracting officer. See Nussbaum, 145 Fed. Cl. at 13. Consequently, the Claims Court was correct to dismiss the action as untimely. Lastly, we note that Nussbaum’s causes of action would also be barred under § 2501. Section 2501 provides that any claim filed before the Claims Court must generally be brought within six years after it accrues. 28 U.S.C. § 2501; see also Martinez v. United States, 333 F.3d 1295, 1303 (Fed. Cir. 2003) (en banc). Nussbaum’s claims accrued no later than 2010, and this action was filed in 2019, approxi- mately three years too late under § 2501. CONCLUSION We have considered the rest of Nussbaum’s arguments and find them without merit. The Claims Court correctly determined that this action is time-barred. We affirm the judgment of the Claims Court. AFFIRMED Case: 20-1170 Document: 59 Page: 7 Filed: 11/17/2021

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COSTS No costs.